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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES R. CRUZ, JR., : No. 384 MDA 2014
:
Appellant :
Appeal from the PCRA Order, February 4, 2014,
in the Court of Common Pleas of Centre County
Criminal Division at No. CP-14-CR-0001246-1993
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 05, 2015
Appellant appeals the order dismissing his first petition filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
Finding no error, we affirm.
Appellant was charged with the kidnapping, rape, murder, and other
offenses in connection with the March 22 to 24, 1993 murder of a young
woman whose body was found near an on-ramp to State Route 26 in
Centre County. On June 15, 1994, a jury found appellant guilty of first
degree murder and theft, but acquitted him of the other charges.
Immediately thereafter, appellant was sentenced to life imprisonment.
On December 22, 1995, this court affirmed the judgment of sentence,
and on June 26, 1996, our supreme court denied appeal. Commonwealth
v. Cruz, 674 A.2d 313 (Pa.Super. 1995) (unpublished memorandum),
* Former Justice specially assigned to the Superior Court.
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appeal denied, 678 A.2d 364 (Pa. 1996). On March 18, 1997, appellant
filed the present PCRA petition pro se. Attorney Robert Bascom was
appointed to represent appellant, but thereafter took no further action. 1
Appellant’s petition languished for the next 15 years until, for unstated
reasons, it came to the court’s attention. On July 30, 2012, the court
appointed new counsel. An amended PCRA petition was filed on June 10,
2013. On October 18, 2013, the Commonwealth filed a motion to dismiss
appellant’s petition pursuant to 42 Pa.C.S.A. § 9543(b), which permits the
court to dismiss a petition where the Commonwealth would be prejudiced in
its ability to re-try the petitioner. A hearing was held on October 31, 2013.
On December 10, 2013, appellant petitioned to supplement the record with
the testimony of Attorney Bascom. The petition was denied January 16,
2014. On February 4, 2014, the PCRA court dismissed appellant’s petition
on the bases that he had abandoned his PCRA effort and that the
Commonwealth would be prejudiced in re-trying appellant. This appeal
followed.
Appellant raises the following issues on appeal:
I. DID THE PCRA COURT COMMIT LEGAL ERROR
IN DISMISSING DEFENDANT’S POST-
CONVICTION COLLATERAL RELIEF PETITION
1
According to a Petition to Supplement the Record, filed 12/10/13, shortly
after his appointment, Attorney Bascom had a conference with the PCRA
court at which he informed the court that his appointment was beyond his
area of expertise. Attorney Bascom was thereafter under the impression
that he was relieved of his assignment; however, no order was ever entered
permitting him to withdraw.
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AND AMENDED POST-CONVICTION
COLLATERAL RELIEF PETITION?
A. DID THE PCRA COURT ERR IN
FINDING THAT DEFENDANT
ABANDONED HIS POST-
CONVICTION COLLATERAL RELIEF
PETITION?
B. DID THE PCRA COURT ERR IN
FINDING THAT THE
COMMONWEALTH WAS
PREJUDICED AS A RESULT OF THE
DELAY FROM THE TIME OF THE
FILING OF THE PETITION TO THE
DATE OF THE HEARING ON THE
COMMONWEALTH’S MOTION TO
DISMISS?
II. DID THE PCRA COURT ERR IN DISMISSING
DEFENDANT’S PETITION TO SUPPLEMENT THE
RECORD?
Appellant’s brief at 4.
We find no error with the trial court’s holding. After a thorough review
of the record, the briefs of the parties, the applicable law, and the
well-reasoned opinions of the trial court, it is our determination that there is
no merit to the questions raised on appeal. The trial court’s thorough,
six-page opinion, filed on February 4, 2014, comprehensively discusses and
properly disposes of the questions presented at I.A. and I.B. The court’s
Rule 1925(a) opinion, filed March 18, 2014, properly disposes of the issue
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listed at II.2 We will adopt those opinions as our own and affirm on their
bases.
Orders affirmed.
Panella, J. joins the Memorandum.
Fitzgerald, J. notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2015
2
42 Pa.R.A.P., Rule 1925(a), 42 Pa.C.S.A.
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